Grand jury process scrutinized in DA race

Kim Ogg, the Democrat challenging Harris County District Attorney Devon Anderson in next week's general election, criticized the GOP incumbent Monday for not working hard enough to change the system used by most of Houston's felony judges to pick grand juries.

"Our grand juries should reflect the population of Harris County, selected in a way so that all our residents feel the system is fair," Ogg said in a news release. She said Harris County is the last major metropolitan area in Texas to use the "key man" selection process, where a judge picks a grand jury commissioner who then selects 11 people to serve.

Monday's development was the latest in the race at the top of Houston's county-wide ticket. Polls show a statistical dead heat with about 40 percent of voters still undecided.

Anderson, formerly a state district judge, has said the elected district attorney has no power to compel judges to use an alternative system, like a random jury selection, similar to the way trial juries are selected.

She has publicly praised Brock Thomas, her former law partner and now judge, for using alternatives to the key man system, but has little sway over any judge's decisions, said Sara Marie Kinney, Anderson's spokeswoman.

Kinney said a district attorney can change how grand juries are selected in one of two ways: suggest alternatives for the judges or lobby the state legislature to change the law.

If elected, Anderson may consider including that legislation change in her lobbying priorities, Kinney said.

Grand juries in Harris County typically meet for several hours a day, two days a week for three months. Advocates of the key man system generally say the onerous scheduling makes picking a random grand jury difficult. They point to the advantages of having a commissioner who can find volunteers with flexible schedules, generally retirees and other people who are financially independent.

Power of grand juries

Created to act as a gatekeeper in criminal cases, grand juries are tasked with deciding whether enough evidence exists to hand down an indictment, which allows prosecutors to go forward in a criminal case.

Grand jury proceedings are secret and there is no right of cross-examination. In an area as large as Harris County, hundreds of felony indictments may be handed down by a grand jury with little more than a perfunctory recitation of the allegations by a prosecutor.

Some cases, however, are deeply investigated by grand juries, which have the ability to subpoena witnesses and conduct their own probes.

Because of the power grand juries can wield and the secrecy of the process, critics have long complained of a lack of diversity in Houston's grand juries.

Ogg pointed out that one grand juror has served seven times during the 12 years from 1999 to 2011, according to data the campaign released Monday. The information, the campaign said, was compiled by a Harris County Courthouse whistle-blower. During those same years, 19 people served five times or more, according to the data.

Ogg said the data reinforces the perception that judges repeatedly choose the same grand jurors rather than find new faces.

"Even the U.S. Supreme Court has expressed concern that the 'key man' system we use to pick grand jurors is ripe for abuse and favoritism," Ogg said. "This is why it has earned the nickname 'pick a pal.' "

Another development in the race focused on allegations raised by Anderson supporter Murray Newman, a defense attorney and former prosecutor whose blog is widely read at the criminal courthouse. He asserted in his blog that Ogg gave a defense attorney in a murder trial information that was privileged attorney-client information, violating a central tenet of a lawyer's representation.

'Followed judge's order'

Ogg denied the accusation, saying she was forced by court order to release information.

"I followed a judge's order to turn over a file," Ogg said. "There was no violation."

Ogg said she and her father, Jack Ogg, represented Ken McAfee and his wife with a medical disability claim. McAfee was later arrested and convicted of murder in his wife's 2010 death. Before the trial, McAfee's attorney, Gerald Fry, asked for and received information from Ogg. He said Ogg acted "above board" by asking first for advice from the State Bar of Texas on the release, then for a judge's ruling compelling her to give out the information.

Fry, who supports Ogg in the race, said Monday he was not aware of any controversy about the issue.

Of the accusation, Anderson said it was "obviously profoundly disturbing when an attorney willingly turns over confidential information."